Conditions Precedent to the Obligations of the Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by the Purchaser in its sole discretion: (a) Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e)); (b) the representations and warranties made by Sellers in this Agreement or in any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing Date, with the same force and effect as though all such representations and warranties had been made as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified date, which shall be so true and correct only as of such other specified date); (c) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date; (d) Sellers shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment; (e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser; (f) Sellers shall have fulfilled its obligations under Article 2 of the MSA; (g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated; (h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof; (i) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.2; (j) Since the date of this Agreement, there has been no Material Adverse Effect;
Appears in 2 contracts
Samples: Asset Purchase Agreement (Sigma Designs Inc), Asset Purchase Agreement (Sigma Designs Inc)
Conditions Precedent to the Obligations of the Purchaser. The obligations of the Purchaser to consummate complete the transactions contemplated by this Agreement are Closing shall be subject to the fulfillment, on at or prior to the time of the Closing Date, of each of the following conditions, any of which may be waived in writing by the Purchaser in its sole discretion:
(a) Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion except for such changes as permitted or notice of such motion filed contemplated by or on behalf of Sellers (which service shall comply with Section 7.1(e));
(b) this Asset Purchase Agreement, the representations and warranties made by Sellers of the Physician Parties contained in this Asset Purchase Agreement or in any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date at and as of the Closing Date, Date with the same force and effect as though all such representations if made at and warranties had been made as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified date, which shall be so true and correct only as of such other specified date);
(c) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date;
(b) the Physician Parties shall have performed, complied with and fulfilled all the covenants, agreements, obligations and conditions required by any of the Transaction Documents to be performed, complied with or fulfilled by them prior to or at the Closing;
(c) since the date of this Asset Purchase Agreement, there shall not have occurred any event or events, whether individually or in the aggregate, that have had or that reasonably could be reasonably expected to have a Material Adverse Effect on the financial condition, results of operations, properties, assets, liabilities, business operations of the Clinic or the Practice;
(d) Sellers the Purchaser shall have paid received all of the known Cure Costs for all Assigned Contractsinstruments, documents and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Paymentother items described in Section 3.2 hereof;
(e) Sellers the Physician Parties shall have entered into agreed, and such agreement shall continue to be in effect, to terminate all real property leases to which the Clinic is a Manufacturing Services Agreement with NXP applicable to party as of the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;Closing Date; and
(f) Sellers the Purchaser and its permitted assignee shall have fulfilled its obligations under Article 2 received all information reasonably requested from the Physician Parties with respect to employees of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17Clinic, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version connection with its evaluation of employees of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.2;
(j) Since the date of this Agreement, there has been no Material Adverse Effect;Clinic.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Basic Care Networks Inc), Asset Purchase Agreement (Basic Care Networks Inc)
Conditions Precedent to the Obligations of the Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are with respect to each Project shall be subject to the fulfillment, fulfillment on or prior to before the Date of Closing Date, of each all of the following conditionsconditions with respect to said Project, any or all of which may be waived in writing by the Purchaser in its sole discretion:
(a1) Sellers The appropriate Seller shall have delivered or caused to be delivered to Purchaser, or Purchaser shall have received, all of the items required to be delivered to Purchaser pursuant to the Purchaser (iterms of this Agreement, including but not limited to, those provided for in Sections 6, 13 and 32(a) a certified copy of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e))hereof;
(b2) All of the representations and warranties made by Sellers of the appropriate Seller contained in this Agreement or in any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of Closing, subject to the Closing Date, with the same force and effect as though all such representations and warranties had been made as provisions of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified date, which shall be so true and correct only as of such other specified date)Section 6(g) hereof;
(c3) Sellers The appropriate Seller shall have performed and complied observed, in all material respects with respects, all obligations covenants and agreements required in of this Agreement to be performed or complied with and observed by them on or prior to such Seller as of the Closing DateDate of Closing;
(d4) Sellers The appropriate Seller shall have paid delivered a written statement from each Tenant at the known Cure Costs for all Assigned ContractsProject, waiving such Tenant’s rights of first refusal to purchase the Project as may be provided under its Lease at such Project, and the Closing Agent shall be committed to issue affirmative coverage that such rights were not exercised or to take no exception in the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct Owner’s title policy for such Cure Costs from the Cash Paymentrights of first refusal;
(e5) Sellers The Closing Agent shall have entered into a Manufacturing Services Agreement with NXP applicable delivered to Purchaser an Owner’s title insurance policy issued by the Closing Agent pursuant to the Business (the “NXP MSA”)Title Commitment for each Project, in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser effective as of the date hereof;Date of Closing in an amount equal to the Purchase Price for such Project; and
(i6) Sellers The appropriate Seller shall have delivered, or caused to be delivered, to the Purchaser current on all payments due under its Loan as of the items Date of Closing and shall not be otherwise in default under the terms of its Mortgage or other loan documents as of the Date of Closing. In the event that the failure of one or more of the conditions set forth in this Section 3.2;
(j5(a) Since is the date result of a default on the part of Seller, then in addition to the rights set forth above in this Agreementparagraph, there has been no Material Adverse Effect;Purchaser may also exercise any other rights it may have under Section 11(b) hereof.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
Conditions Precedent to the Obligations of the Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, conditions (any or all of which may be waived in writing by the Purchaser in its sole discretion:whole or in part to the extent permitted by applicable Law, except that the conditions precedent set forth in sub-clauses (e) may only be waived with the written consent of each New Equity Investor and the Required DIP Lenders):
(a) Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.27.2 and which shall be a Final Order) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e7.1(f));
(b) the The representations and warranties made by Sellers set forth in this Agreement or in any Ancillary Document Article IV hereof shall be true and correct in all material respects (provided that any such representation or warranty that is subject except with respect to any representations and warranties of Sellers qualified as to materiality, Material Adverse Effect or similar qualification which shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and respects) as of the Closing Date, with the same force and effect Date as though all such representations made on and warranties had been made as of the Closing Date (other than except for such representations and warranties that by their terms address matters made only as of another specified a certain date, which shall be so true and correct only as of such other specified date as though made on and as of such date);, and the Purchaser shall have received a certificate signed by an authorized officer of Champion, dated the Closing Date, to the foregoing effect, provided, however, that all such representations and warranties of Sellers shall lapse and be of no further force or effect after the Closing.
(c) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date, and the Purchaser shall have received a certificate signed by an authorized officer of Champion, dated such Closing Date, to the forgoing effect;
(d) Sellers shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.2;
(e) Sellers shall have obtained all consents, approvals (including Regulatory Approvals), waivers, Permits, authorizations, licenses, registrations, qualifications or other permissions or actions required under applicable Law for the consummation of the transactions contemplated by this Agreement, and shall have given all necessary notices to, and made all filings with, and applications and submissions to, any Governmental Body or third party as required by applicable Law and provided all such information as may be necessary or reasonably requested relating to the transactions contemplated hereby; and such consents, approvals, waivers, Permits, authorizations, licenses, registrations, qualifications, permissions, notices and filings shall remain in full force and effect as of the Closing Date;
(f) The Purchaser shall have obtained all Material Permits, and all such Material Permits shall remain in full force and effect as of the Closing Date, in each case to the extent necessary or reasonably desirable to operate the Business in the ordinary course as from the Closing Date; provided that Purchaser shall use commercially reasonable efforts, at Purchaser’s sole cost and expense, to obtain all such Material Permits on or prior to the Outside Date;
(g) The Department of Housing and Urban Development (or any of its certifying bodies) shall not have threatened in writing to suspend or terminate any certification or authorization to operate any of the manufacturing or other facilities to be transferred to Purchaser at the Closing.
(h) CBS Monaco Limited shall have filed its fiscal year 2008 audited accounts with the U.K. Companies House and shall not have been struck off the corporate register, and there shall not be any ongoing proceedings that could result in the strike off of CBS Monaco Limited from the corporate register or the vacating of all assets of CBS Monaco Limited to the Crown.
(i) Sellers shall have delivered to Purchaser, at least ten (10) Business Days before the Closing Date: (x) audited and unaudited financial statements, cash reports, updated reserve reports with respect to workers compensation and other potentially material liabilities of the Sellers, (y) reports with respect to each material facility of the Sellers evidencing that the representations and warranties of the Sellers set forth in Section 4.21 are true and correct in all material respects, and (z) such other information as may be reasonably requested by the Purchaser;
(j) With respect to each Assumed Owned Real Property and each Assumed Real Property Lease, Purchaser shall have obtained, prior to the Interim Deadline, a commitment (which provides that it will remain in effect until at least 30 days after the Closing Date) from a national title insurance company selected by Purchaser to issue an ALTA extended coverage owner’s policy of title insurance (subject only to the requirement that the Sellers deliver at the Closing the documents described in Section 3.2(g) or Section 3.2(h), as applicable), insuring either (as applicable): (i) good and clear, record and marketable fee simple title in and to such Assumed Owned Real Property to be in Purchaser (or its designee), subject only to the Permitted Encumbrances and other title exceptions satisfactory to Purchaser, or (ii) a valid leasehold interest in and to such Assumed Real Property Lease to be in Purchaser (or its designee), which leasehold interest (but not the fee interest in the applicable property to which the Assumed Real Property Lease relates) is subject only to the Permitted Encumbrances and other title exceptions satisfactory to Purchaser;
(k) Seller shall have achieved the minimum cash and working capital targets set forth on Schedule 9.3(k) and shall have delivered to Purchaser as of Closing a certificate of Champion’s chief financial officer certifying the same;
(l) Sellers shall have provided evidence reasonably satisfactory to Purchaser with respect (i) to the transfer, cancellation or contribution of the intercompany loans and other intercompany accounts in a manner reasonably satisfactory to the Purchaser and in accordance with the terms set forth of Section 1.10 and (ii) termination in a manner reasonably satisfactory to the Purchaser of all tax sharing, gain recognition or similar agreements or arrangements of the Sellers and International Subsidiaries with any Governmental Body or any direct or indirect subsidiary or other Affiliate of any Seller in a manner reasonably satisfactory to the Purchaser and in accordance with the terms of Section 8.13;
(m) To the extent that Sellers have rights under the applicable Assumed Real Property Leases to so extend, Sellers shall have delivered to the Purchaser documentation reasonably satisfactory to the Purchaser evidencing the extension of any Assumed Real Property Leases that Schedule 4.16(b) indicates have expired or will expire prior to the Closing;
(n) The Sellers shall have designated the Estate Administrator;
(o) As of the Closing Date, to Sellers’ Knowledge, none of the Encumbrances described in Item 3. of Schedule 10.1(iii) shall, individually or in the aggregate, constitute or secure material Liabilities or have, or reasonably be expected to have, a material effect on the Purchaser’s ability to own and operate the assets encumbered thereby as from the Closing Date, and a duly authorized officer of Champion shall have delivered a certificate to the Purchaser, in form and substance reasonably satisfactory to the Purchaser, to such effect; and
(p) Since the date of this Agreement, Reference Date there has been no shall not have occurred a Material Adverse Effect;Change.
Appears in 1 contract
Samples: Asset Purchase Agreement (Champion Enterprises Inc)
Conditions Precedent to the Obligations of the Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, conditions (any or all of which may be waived in writing by the Purchaser in its sole discretion:whole or in part to the extent permitted by applicable Law):
(a) Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e));
(b) the representations and warranties made by of Sellers set forth in this Agreement or in any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification Article V hereof shall be true and correct in all respects after giving effect to (in the case of any such qualification), representation or warranty qualified by “materiality” or “Material Adverse Effect”) or in each all material respects (in the case as of the Agreement Date and as of the Closing Date, with the same force and effect as though all such representations and warranties had been made any representation or warranty not qualified by “materiality” or “Material Adverse Effect”) as of the Closing Date (other than except to the extent such representations and warranties that by their terms address matters only as of another specified expressly relate to an earlier date, in which shall be so true and correct only case, as of such other specified earlier date), and the Purchaser shall have received a certificate signed by an authorized officer of MSN, dated the Closing Date, to the foregoing effect;
(cb) Sellers shall have performed and complied in all material respects with all material obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date, and the Purchaser shall have received a certificate signed by an authorized officer of MSN, dated such Closing Date, to the forgoing effect;
(d) Sellers shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(ic) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.24.2;
(d) Sellers and the Escrow Agent shall have executed the Adjustment Escrow Agreement;
(e) between the Execution Date and the Closing Date, there shall not have occurred a Material Adverse Effect;
(f) the Assumed Contracts and Assumed Leases set forth on Schedule 9.3(f) (the “Required Contracts”) shall have been assigned to Purchaser;
(g) Sellers shall have delivered to Purchaser appropriate evidence of all necessary corporate or limited liability company action by the Sellers in connection with the transactions contemplated hereby, including: (i) certified copies of resolutions duly adopted by the Sellers’ members, stockholders, board of managers or similar governing body approving the transactions contemplated by this Agreement and authorizing the execution, delivery, and performance by the Sellers of this Agreement; and (ii) a certificate as to the incumbency of officers of each Seller executing this Agreement and any instrument or other document delivered in connection with the transactions contemplated by this Agreement;
(h) Purchaser shall have received an opinion, dated the Closing Date from counsel to Sellers substantially in the form attached hereto as Schedule 9.3(h);
(i) any Encumbrances on any of the Purchased Assets securing any Indebtedness of Sellers shall have been released; and the assets covered by that certain Service Contract and Equipment Lease dated April 26, 2013, by and among MSN, as lessee, and Hewlett-Packard Financial Services Company, as lessor, shall have been assigned to Purchaser free and clear of any and all Encumbrances;
(j) Since Purchaser shall have received the date Financing pursuant to the Commitment Letters;
(k) Sellers’ insurance policies set forth on Schedule 9.3(k) shall have been duly assigned to Purchaser (or, if applicable, Purchaser shall have been named an additional named insured on such policies);
(l) except for the removal of this Agreementthe “going concern” qualification by the Sellers’ independent auditor, there has shall not have been no Material Adverse Effect;any modifications or other changes to the 2013 Financial Statements attached hereto as Exhibit D; and
(m) the individuals set forth in the schedule labeled “Required Offer Letter Signatories” delivered to Sellers by Purchaser prior to the Execution Date shall have executed and delivered to Purchaser offer letters and employment agreements in substantially the form provided to Sellers by Purchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cross Country Healthcare Inc)
Conditions Precedent to the Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, conditions (any or all of which may be waived in writing by the Purchaser in its sole discretion:whole or in part to the extent permitted by applicable Law):
(a) Sellers the Seller shall have delivered to the Purchaser (i) a certified copy of the Sale Approval Order (which shall contain contain, among other things, the terms described in Section 7.29.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers the Seller (which service shall comply with Section 7.1(e9.1(f));
(b) the representations and warranties made by Sellers of (i) the Seller set forth in this Agreement or ARTICLE V and (ii) FSNA set forth in any Ancillary Document ARTICLE VI shall be true and correct in all material respects (provided that any other than representations and warranties qualified as to “materiality” or “material adverse effect”, which representations and warranties shall be true in all respects) as of the date hereof and as of the Closing Date as though made on and as of the Closing Date (except for such representation or warranty that is subject to any materialityrepresentations and warranties made as of a certain date, Material Adverse Effect or similar qualification which shall be true and correct in all material respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing Date, with the same force and effect as though all such representations and warranties had been made as of the Closing Date (other than representations and warranties that by their terms address matters only qualified as of another specified dateto “materiality” or “material adverse effect”, which representations and warranties shall be so true and correct only in all respects) as of such other specified date as though made on and as of such date);
(c) Sellers both the Seller and FSNA shall have performed and complied in all material respects with all covenants, obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date, and the Purchaser shall have received (i) a certificate signed by an authorized officer of the Seller and (ii) a certificate signed by an authorized officer of FSNA, each dated such Closing Date, to the forgoing effect;
(d) Sellers except as provided in Section 10.3(a), all of the Assumed Contracts set forth on Section 11.3(d) of the Seller Disclosure Schedule, shall have paid (i) be in full force and effect on the known Cure Costs for all Assigned Closing Date, and (ii) other than with respect to Subsequent Designated Executory Contracts, have had all of the Seller’s monetary breaches and to monetary defaults thereunder cured as of the extent not paid, the Purchaser may pay Closing Date by payment of the Cure Costs to through the applicable Third Parties and deduct such Cure Costs from funding provided by the Cash PaymentDIP Lender under the DIP Facility (or creation of reserves therefor) in accordance with the Sale Approval Order or otherwise;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”)amount of Cure Costs paid does not, in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaseraggregate, exceed one hundred ten percent (110%) of the aggregate amount of Cure Costs set forth on Schedule 1.1(y);
(f) Sellers the Purchaser shall have fulfilled its obligations under Article 2 of received all Consents from third parties (including any Governmental Bodies) and Permits (in each case, which the MSAPurchaser deems necessary) to permit the Purchaser to own and operate the Purchased Assets and the Assumed Liabilities from and after the Closing in substantially the same manner as operated by the Seller prior to the Closing (including, without limitation, all Consents required to assume and assign the Assumed Airport Concession Agreements);
(g) Sellers there shall have fulfilled their obligations under be no prohibition of or limitation on the agreement (acquisition, ownership or operation by the “Philips Agreement”) dated January 17Purchaser or any of its Affiliates of the Purchased Assets, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips there shall have released be no requirement that the Purchaser or any claims against Sellers under of its Affiliates divest or hold separate any of the Philips Agreement and Purchased Assets or any of the Philips Agreement shall have terminatedassets of the Purchaser or any of its Affiliates;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers Seller shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.24.2;
(i) the Purchaser shall have obtained all of the Seller Permits (other than those Permits that are the subject of Section 11.3(f)) to the extent assignable or transferable in accordance with applicable Law or the Sale Approval Order, and all such Seller Permits shall be in full force and effect as necessary for the Purchaser to continue to conduct the Business in the Ordinary Course of Business immediately after the Closing Date;
(j) Since between the date of this AgreementExecution Date and the Closing Date, there has been no shall not have occurred a Material Adverse EffectEffect with respect to the Business or condition of the Seller or FSNA, the Purchased Assets or the Assumed Liabilities, in each case from and after the Execution Date;
(k) the Seller and FSNA shall have obtained all approvals and Consents from all Governmental Bodies (including all airport authorities) and other third parties necessary to obtain and transfer to the Purchaser at the Closing all Specified Airport Concessions; and
(l) the Seller and FSNA shall have obtained all approvals and Consents from any and all Governmental Bodies (including all airport authorities) and other third parties necessary to transfer to the Purchaser at the Closing all OTA Agreements.
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions Precedent to the Obligations of the Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, conditions (any or all of which may be waived in writing by the Purchaser in its sole discretion:whole or in part to the extent permitted by applicable Law):
(a) Sellers Seller shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e))Seller;
(b) the representations and warranties made by Sellers of Seller set forth in this Agreement or in any Ancillary Document Article 3 hereof shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing Date, with the same force and effect Date as though all such representations made on and warranties had been made as of the Closing Date (other than except for such representations and warranties that by their terms address matters only made as of another specified a certain date, which shall be so true and correct only as of such other specified date as though made on and as of such date)) except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation or qualification as to “materiality” or “Material Adverse Effect” set forth in such representations and warranties) has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and the Purchaser shall have received a certificate, substantially in the form attached hereto as Exhibit E, signed by an authorized officer of the Seller, dated the Closing Date, to the foregoing effect;
(c) Sellers Seller shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date, and the Purchaser shall have received a certificate, substantially in the form attached hereto as Exhibit E, signed by an authorized officer of the Seller, to the forgoing effect;
(d) Sellers shall have paid Provided Purchaser has provided adequate assurance of future performance as required under the known Cure Costs for all Bankruptcy Code to effect the assumption and assignment of the Assigned Contracts, all of the Assigned Contracts set forth on Schedule 6.2 shall (i) be in full force and effect on the Closing Date, subject to the extent not paidBankruptcy Exception, (ii) be assignable to the Purchaser may pay without the consent of the counterparty to such Assigned Contract for such assignment (or such consent shall have been received prior to the Closing Date) and (iii) have had the amount of all of Seller’s breaches and defaults thereunder finalized to the best of the Seller’s ability, such that the Cure Costs to may be paid by the applicable Third Parties and deduct such Cure Costs from Purchaser (or creation of reserves therefor) in accordance with the Cash PaymentSale Order;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers Seller shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.27.2;
(jf) Since between the date of this AgreementExecution Date and the Closing Date, there has been no shall not have occurred a Material Adverse Effect, unless Material Adverse Effect was caused by the Purchaser’s failure to fulfill any material obligations under this Agreement;
(g) the Seller shall have complied with the sale process deadlines set forth in the Bidding Procedures Order; and
(h) the exclusive right of the Seller to file and solicit acceptances of a plan of reorganization shall not have been terminated.
Appears in 1 contract
Conditions Precedent to the Obligations of the Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, except for any such failure which would not reasonably have a material adverse effect on (i) the right of the Purchaser to own, subject to the terms of this Agreement, all Purchased Assets that are necessary or material to the conduct of the Business or (y) Purchaser’s ability to conduct the Business following the Closing (any or all of which may be waived in writing by the Purchaser in its sole discretion:whole or in part to the extent permitted by applicable law).
(a) Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e));
(b) the representations and warranties made by Sellers in this Agreement or in any Ancillary Document of the Senior Agent contained herein shall be materially true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing DateDate (or, if made as of a specific date, at and as of such date), with the same force and effect as though all such representations and warranties had been made on and as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified or such specific date, which shall be so true and correct only as of except to the extent any such other specified date)inaccuracy would not reasonably have a material adverse effect on the Senior Agents’ ability to perform its obligations hereunder;
(cb) Sellers the Senior Agent shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date, except for any such failure which would not reasonably have a material adverse effect on the Senior Agent’s ability to perform its obligations hereunder;
(d) Sellers shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(hc) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers Senior Agent shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.23.2 (a);
(d) Senior Agent has complied with part 6 of Division 9 of the UCC, including, but not limited to, sections 9-610, 9-611, 9-613, and 9-617, and (ii) Senior Agent has sent notification of the proposed disposition of the Purchased Assets to all relevant parties in accordance with sections 9-611 through 9-613 of the UCC.
(e) the Purchaser shall have received any material consents, approvals and releases necessary to take title to material Purchased Assets;
(f) there shall not have been any event or circumstance which has resulted in a Material Adverse Effect and no event has occurred or circumstance exists that could be expected to result in such a Material Adverse Effect;
(g) no action, suit or proceeding shall be pending or threatened before any Governmental Body wherein an unfavorable injunction, judgment, order, decree, ruling or charge would reasonably be expected to (i) prevent consummation of the transactions contemplated by this Agreement, (ii) cause any of the transactions contemplated by this Agreement to be rescinded following consummation, (iii) affect adversely (x) the right of the Purchaser to own, subject to the terms of this Agreement, all Purchased Assets that are necessary or material to the conduct of the Business or (y) Purchaser’s ability to conduct the Business following the Closing (and no such injunction, judgment, order, decree, ruling or charge shall be in effect);
(h) the Invoice Register and the List of Creditors and Liabilities of Owners, including receivables aging for accounts payable, which are attached hereto as Exhibit C, shall be true and correct in all material respects as of the dates specified therein;
(i) each of the Owners, with respect to the Leased Real Property that constitute Purchased Assets, are in compliance in all material respects with all applicable federal, state and local laws and regulations relating to pollution or protection of human health or the environment, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., and any amendments thereto, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., and any amendments thereto, the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq., any other laws now in effect relating to, or imposing liability or standards of conduct concerning, any Hazardous Materials, and any laws relating to the protection of human health and occupational safety for employees and others in the workplace (collectively, “Environmental Laws”); and none of the Owners have received written notice of or is the subject of, any action, cause of action, claim, investigation, demand or notice by any Person alleging material liability under or noncompliance in any material respect with any Environmental Law or advising it that it is or may be responsible, or potentially responsible, for material response costs with respect to a release or threatened release of any Hazardous Materials;
(j) Since each of the date Owners is in compliance in all material respects with all material laws, statutes, rules and regulations having the effect of this Agreementlaw of the United States or any state, there county, city or other political subdivision thereof or of any Governmental Body (“Laws”), and material writs, judgments, decrees, injunctions and similar orders of any Governmental Body, in each case, whether preliminary or final (“Orders”), applicable and material to the Business. None of the Owners has received any written notice from any Governmental Body or other Person claiming any material violation of any Law with respect to the Business;
(k) each material Assigned Contract will be in full force and effect and enforceable in accordance with its terms in all material respects. None of the material Assigned Contracts is the subject of, or has been no Material Adverse Effect;threatened to be made the subject of, any arbitration, suit or other legal proceeding; and
(l) the Purchased Assets constitute all material assets, rights and properties necessary for the conduct of the Business.
Appears in 1 contract
Samples: Foreclosure Sale and Purchase Agreement (StarVox Communications, Inc. /DE/)
Conditions Precedent to the Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, conditions (any or all of which may be waived in writing by the Purchaser in its sole discretion:whole or in part to the extent permitted by applicable Law):
(a) the Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed with the Bankruptcy Court by or on behalf of the Sellers (which service shall comply with Section 7.1(e));
(b) [Reserved];
(i) the Sale Order shall have been approved by the Bankruptcy Court by the close of business on May 20, 2011 unless such date is waived or extended by the Purchaser in its sole discretion and (ii) following its entry, the Sale Order shall continue to be in full force and effect and shall not have been stayed, vacated, reversed, modified, amended, or supplement in any material respect without the prior written consent of the Purchaser and the Seller;
(d) the Sale Order shall have become a Final Order and shall be in full force and effect;
(e) the Bankruptcy Court shall not have entered an order (i) dismissing any Chapter 11 Case or converting any Chapter 11 Case into a case or cases under Chapter 7 of the Bankruptcy Code, or (ii) appointing a trustee or examiner with expanded powers to operate or manage the financial affairs, the business or the reorganization of the Sellers in any Chapter 11 Case;
(f) the representations and warranties made by of the Sellers set forth in this Agreement or in any Ancillary Document Article 4 hereof shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of on the Agreement Date date hereof and as of the Closing Date, with the same force and effect Date as though all such representations made on and warranties had been made as of the Closing Date (other than except for such representations and warranties that by their terms address matters only made as of another specified a certain date, which shall be so true and correct only as of such other specified date as though made on and as of such date);
(cg) the Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date;
(dh) Sellers except as provided in Section 8.3, all of the Assigned Contracts shall (i) be in full force and effect on the Closing Date, and (ii) be assignable to the Purchaser without the consent of the counterparty to such Assigned Contract for such assignment (or such consent shall have paid the known Cure Costs for all Assigned Contracts, and been received prior to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”Closing Date), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) the Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.2;
(j) Since [Reserved];
(k) (i) all of the date Liabilities of this AgreementSellers and the Xxxxxxxx Islands Subsidiaries arising under or relating to the Prepetition Working Capital Facility, the DIP Facility and the Senior Secured Notes shall have been discharged in full, (ii) all Encumbrances related to or resulting in connection with the Prepetition Working Capital Facility, the DIP Facility and the Senior Secured Notes shall have been properly discharged and released, including with respect to the Xxxxxxxx Islands Subsidiaries, and (iii) all other Encumbrances (other than Permitted Encumbrances) on the Purchased Assets shall have been properly discharged and released;
(l) all required governmental or regulatory approvals and consents, if any, shall have been received;
(m) between the Petition Date and the Closing Date, there has been no shall not have occurred a Material Adverse Effect;
(n) the Sellers and the Xxxxxxxx Islands Subsidiaries shall have filed all Tax Returns, including Internal Revenue Service Form 1120-F, for all taxable periods ending on or before December 31, 2009; and
(o) during the period from the Petition Date and continuing until the earlier of the termination of this Agreement in accordance with Section 3.4 or the Closing Date, subject to the approval of the Bankruptcy Court, the Sellers shall have remained current in the payment of wages owed or owing to any Employee.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ambassadors International Inc)
Conditions Precedent to the Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, conditions (any or all of which may be waived in writing by the Purchaser in its sole discretion:whole or in part to the extent permitted by applicable Law):
(a) Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.28.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e)Sellers);
(b) the representations and warranties made by of Sellers set forth in this Agreement or in any Ancillary Document Article V hereof shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing Date, with the same force and effect Date as though all such representations made on and warranties had been made as of the Closing Date (other than except for such representations and warranties that by their terms address matters only made as of another specified a certain date, which shall be so true and correct only as of such other specified date as though made on and as of such date)) except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation or qualification as to “materiality” or “material adverse effect” set forth in such representations and warranties) has not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the Sellers or the Sellers’ ability to consummate the transactions contemplated hereby, and the Purchaser shall have received a certificate signed by an authorized officer of HUSA, dated the Closing Date, to the foregoing effect;
(c) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date;, and the Purchaser shall have received a certificate signed by an authorized officer of HUSA, dated the Closing Date, to the forgoing effect; and
(d) Sellers shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.2;
(j) Since the date of this Agreement, there has been no Material Adverse Effect;4.2.
Appears in 1 contract
Conditions Precedent to the Obligations of the Purchaser. The All obligations of the Purchaser to consummate the transactions contemplated by under this Agreement are subject to the fulfillment, on fulfilment at or prior to before the Closing Date, of each of the following conditions, any of which may be waived in writing by the Purchaser in its sole discretion:
(a) Sellers shall have the Vendor’s representations and warranties contained in this Agreement and in any certificate or document delivered to under this Agreement or in connection with the Purchaser (i) a certified copy Transaction will be true at and as of the Sale Order (which shall contain the terms described in Section 7.2) Closing as if such representations and (ii) copies of all affidavits of service of the Sale Motion or notice warranties were made at and as of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e))time;
(b) the representations and warranties made by Sellers in this Agreement or in any Ancillary Document shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing Date, with the same force and effect as though all such representations and warranties had been made as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified date, which shall be so true and correct only as of such other specified date);
(c) Sellers shall Vendor will have performed and complied in all material respects with all obligations agreements, covenants and agreements conditions required in by this Agreement to be performed or complied with by them on it before or prior at the Closing;
(c) the Vendor will have delivered to the Closing DatePurchaser a certificate of an officer of the Vendor, dated the Time of Closing, certifying in such detail as the Purchaser, acting reasonably, may specify to the fulfilment of the conditions set forth in sections 8(a) and 8(b);
(d) Sellers shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay will have received duly executed copies of the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash PaymentConsents;
(e) Sellers shall the Vendor will have entered into a Manufacturing Services Agreement with NXP applicable delivered to the Business (Purchaser a favourable legal opinion of the “NXP MSA”)Vendor’s Botswana legal counsel addressed to the Purchaser and its legal counsel and dated as of the Closing Date, in form and substance reasonably satisfactory content acceptable to Purchasers the Purchaser and Sellers shall have assigned its legal counsel, acting reasonably, relating to title to the NXP MSA Licenses and Bonnyridge’s ability to Purchaserconduct the activities it is presently conducting and those activities that are anticipated to be conducted in respect thereof (the “Title Opinion”);
(f) Sellers shall the Vendor will have fulfilled its obligations under Article 2 delivered to the Purchaser a favourable legal opinion of the MSA;Vendor’s Botswana legal counsel addressed to the Purchaser and its legal counsel and dated as of the Closing Date, in form and content acceptable to the Purchaser and its legal counsel, acting reasonably, relating to corporate status of Bonnyridge (the “Corporate Opinion”); and
(g) Sellers the Purchaser being satisfied, in its sole discretion, acting reasonably, with the results of its due diligence review and investigation with respect to Bonnyridge. If the Purchaser is not so satisfied, the Purchaser shall have fulfilled their be entitled to terminate its obligations under this Agreement by notice to that effect given to the agreement (Vendor any time prior to the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”)Time of Closing. Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version Each of the document provided to Purchaser as foregoing conditions are for the exclusive benefit of the date hereof;
(i) Sellers shall have delivered, Purchaser and any such condition may be waived in whole or caused to be delivered, in part by the Purchaser at or before the Time of Closing by delivering to the Purchaser all of Vendor a written waiver to that effect signed by the items set forth in Section 3.2;
(j) Since the date of this Agreement, there has been no Material Adverse Effect;Purchaser.
Appears in 1 contract
Conditions Precedent to the Obligations of the Purchaser. The obligations obligation of the Purchaser to consummate purchase the transactions contemplated by this Agreement Acquired Securities are further subject to the fulfillment, on satisfaction of all of the following conditions at or prior to Closing:
5.3.1 The Purchaser shall have obtained an aggregate amount of financing (through a combination of High Yield Offering, Term Loan, asset backed loan and/or equity) which is sufficient for the Closing Purchaser to close the Transaction and on terms and conditions which are satisfactory to the Purchaser;
5.3.2 Since the Put Date, of each of the following conditions, there shall not have occurred or become known any of which may be waived in writing by the Purchaser in its sole discretion:
(a) Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e))Material Adverse Effect;
(b) the 5.3.3 The representations and warranties made by of the Sellers contained in this Agreement or (other than those referred to in any Ancillary Document Article 5.3.4) shall be true and correct on the Put Date and on the Closing Date (except to the extent such representations and warranties shall have been expressly made only as of a particular earlier date, in all material respects (provided that any which case such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification representations and warranties shall be have been true and correct in all respects after giving effect to any such qualification), in each case as of such earlier date) with the Agreement Date same force and effect as if made on and as of the Closing Date, with provided that if an event occurring after the same force Put Date would cause any representation or warranty of Seller to be not true and effect correct at the Closing then, prior to the Closing, the Seller shall provide the Purchaser as though all soon as practicable clear and fair written disclosure regarding such events (specifically pursuant to this Article 5.3.3), and if such disclosure has been made, for purposes of this Article 5.3.3 (and for no other purposes) such representation and warranty shall be deemed to be true and correct at the Closing, but no such disclosure by the Seller shall, without limitation, limit the Purchaser’s rights under Article 5.3.2, and such disclosure shall be ignored for purposes of Article 11 and 14.
5.3.4 The representations and warranties had been made as of the Closing Date (other than representations Sellers contained in Article 10, 11.1, 11.2, 11.3 and warranties that by their terms address matters only as 11.20 of another specified date, which this Agreement shall be so true and correct only as correct, in all respects, on the Put Date and on the Closing Date; and
5.3.5 Since the Put Date, each of such other specified date);
(c) the Sellers and each Affiliate of the Sellers shall have performed and or complied in all material respects with all of its covenants, undertakings and other obligations and agreements hereunder required in this Agreement to be performed or complied with by them prior to or on the Closing Date.
5.3.6 The conditions set forth in this Article 5.3 are for the sole benefit of the Purchaser and may under no circumstances be used or waived by any of the Sellers. The Purchaser may (to the extent permitted by Law) waive any of them in whole or in part, in writing, at any time prior to the Closing Date and therefore may require the Sellers to complete the Transaction notwithstanding the fact that one or several of the conditions have not been satisfied on or prior to the Closing Date;
(d) Sellers shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.2;
(j) Since the date of this Agreement, there has been no Material Adverse Effect;.
Appears in 1 contract
Conditions Precedent to the Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, any of which may be waived in writing by the Purchaser in its sole discretion:
(a) Sellers the Seller shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain the terms described in Section 7.26.3) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e))the Seller;
(b) the The representations and warranties made by Sellers in this Agreement or in any Ancillary Document of the Seller contained herein shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing Date, with the same force and effect Date as though all made on and as of such date (except to the extent such representations and warranties had been made speak as of the Closing Date (other than an earlier date, in which case, such representations and warranties that by their terms address matters only as of another specified date, which shall be so true and correct only in all respects as of such other specified earlier date), interpreted without giving effect to any Material Adverse Effect or materiality qualifications, except where all failures of such representations and warranties to be true and correct, in the aggregate, do not have or would not reasonably be expected to have, a Material Adverse Effect;
(c) Sellers the Seller shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date;
(d) Sellers no material loss or damage with respect to a material tangible Purchased Asset shall have paid occurred, provided, however, that the known Cure Costs Parties acknowledge that for all Assigned Contracts, and purposes of this Section 8.3(d) a decline of business revenues or loss of customers shall not be considered a material loss or damage with respect to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;Purchased Assets; and
(e) Sellers the Seller shall have entered into a Manufacturing Services Agreement with NXP applicable be prepared to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivereddeliver, or caused cause to be delivered, to the Purchaser all of the items set forth in Section 3.2;
(j) Since the date of this Agreement, there has been no Material Adverse Effect;.
Appears in 1 contract
Conditions Precedent to the Obligations of the Purchaser. 5.2.1 The obligations obligation of the Purchaser to consummate purchase the transactions contemplated by this Agreement are Business and undertake its obligations on the Closing Date is subject to the fulfillment, on or prior to the Closing Date, satisfaction of each of all the following conditions, any of which may be waived in writing by the Purchaser in its sole discretion:
(a) Sellers shall have delivered to the Purchaser (i) a certified copy Each of the Sale Order (which shall contain the terms described in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e));
(b) the representations and warranties made by Sellers in this Agreement or in any Ancillary Document shall be Seller Warranties must have been true and correct in all material respects on and as of the Effective Date and, without giving effect to any Supplemental Disclosure Letter, on and as of the Closing Date (provided that any such representation or warranty with materiality being measured individually and on an aggregate basis with respect to all breaches of representations and warranties); except for (X) the Seller Fundamental Warranties and (Y) each of the Seller Warranties that is subject qualified as to any materiality, Material Adverse Effect or similar qualification shall each of which must have been true and correct in all respects on and as of the date of this Agreement and must be true and correct in all respects after respects, without giving effect to any such qualification)Supplemental Disclosure Letter, in each case as of the Agreement Date on and as of the Closing Date, with ; and except to the same force and effect as though all such representations and warranties had been made extent any Seller Warranty speaks as of the Effective Date or any other specific date, in which case such representation or warranty must have been true and correct in all material respects, without giving effect to any Supplemental Disclosure Letter, as of such date.
(b) Each of the covenants, agreements and obligations of the Seller to be performed at or before the Closing Date pursuant to the terms of this Agreement shall have been duly performed in all material respects at or before the Closing Date.
(other than representations and warranties that by their terms address matters only as c) Each of another specified datethe Brine Leases must have been consolidated into a single lease agreement, which shall be so true for a valid term of not less than ten (10) years from the date of consolidation by the relevant Governmental Authority.
(d) Each of the consents and correct only no objection certificates required from the relevant Governmental Authorities for transfer of the Seller’s interest in the leasehold lands governed by the Brine Leases (as amended/consolidated in accordance with subclause (c) above) to the Purchaser (“Brine Leases Transfer Consents”) must have been obtained.
(e) The Seller shall have executed a valid and binding lease agreement with the Governor of Gujarat with respect to the 20,000 acres of brine flats located at Khavda and Ratadia villages in Dist Bhuj and that are the subject of Seller’s application dated 25 July 2011 to the Governor of Gujarat (“Brine Flat Lease”) and the consent required from the relevant Governmental Authorities for transfer of the Seller’s interest in the leasehold land governed by such other specified dateBrine Flat Lease to the Purchaser shall have been obtained (“Brine Flat Lease Transfer Consent”);
(cf) Sellers shall Each of the third party consents listed in Schedule 5.2.1(f) must have performed been obtained and complied must be in all material respects with all obligations full force and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Dateeffect;
(dg) Sellers shall Each of the Persons set forth on Schedule 5.2.1(g) must have paid the known Cure Costs for all Assigned Contracts, and delivered to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), release letter in form and substance reasonably satisfactory to Purchasers the Purchaser, confirming the release of any Encumbrance that such Person may have with respect to the Business or the Acquired Assets, and Sellers shall have assigned there must not be any Encumbrances, other than Permitted Encumbrances, on the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminatedAcquired Assets;
(h) Since the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereofEffective Date, there shall not have occurred any Material Adverse Effect;
(i) Sellers shall The Seller must have delivered, or caused carried out all corporate procedures that are required under Law in connection with this Agreement and the transactions contemplated hereby that are required to be deliveredcarried out at or before the Closing, to in each case, as is specifically listed in Schedule 5.2.1
(i) including without limitation obtained approval by its board of directors for the Purchaser all execution, delivery and performance by it of the items set forth in Section 3.2this Agreement;
(j) Since the date Seller must have made all intimations, registrations, declarations, filings or recordings to/with the Governmental Authorities, and received all applicable consents and approvals from such Governmental Authorities, required in connection with (i) the execution of this Agreement, there has (ii) the consummation or completion of the transactions contemplated by this Agreement, (iii) the Closing and (iv) the transfer to the Buyer of any existing tax benefits related to the Business, in each case, as is specifically listed in Schedule 5.2.1(j);
(k) the Seller must have obtained consent from its shareholders in a manner compliant with Section 293(1)(a) of the Companies Act, 1956 for the sale and transfer of the Business to the Purchaser in the manner contemplated by this Agreement;
(l) the Seller must have obtained a “no objection certificate” under Section 281 of the Income Tax Act, 1961 (“Tax Certificate”) permitting the transfer of the Business to the Purchaser, and the Tax Certificate must not prohibit any transaction contemplated by this Agreement;
(m) the Seller Parent must have intimated the stock exchanges where it is listed about the transactions contemplated by this Agreement on or before the Closing Date;
(n) the Seller and the concerned lessor must have executed the assignment/novation agreements in the agreed form for the transfer of the lease to the Purchaser of the Real Property Leases on and with effect from the Closing Date;
(o) the sale deeds relating to the transfer of the Owned Real Property must have been no entered into, in the agreed form, for the transfer of the Owned Real Property to the Purchaser on and with effect from the Closing Date;
(p) the Seller and all counterparties to the Material Adverse EffectContracts must have executed the necessary documentation in the agreed form for the novation and/or assignment of all the Material Contracts to the Purchaser on and with effect from the Closing Date;
(q) the New Employment Contracts with each Senior Employee and at least 85% of all other Employees must have been executed;
(r) the Seller must have taken the steps and executed the documents specifically listed in Schedule 5.2.1(r), in the agreed form, in connection with the Employee Benefit Plans;
(s) the documentation for transferring/assigning all Acquired Intellectual Property by the Seller to the Purchaser must be in the agreed form;
(t) the Transition Services shall have been agreed and included in the schedules to the Transition Services Agreement;
(u) the Seller must have recorded, with the sub-registrar’s office at Vadodara, itself as the owner of the Owned Real Property relating to the Vadodara Facility, and the Parties must have agreed in writing upon the precise delineation and boundaries of the Vadodara Facility and the Owned Real Property associated therewith to be acquired by the Purchaser by sub-division of the said land, and must have further agreed upon and entered into in writing such service arrangements as the Parties agree may be required to be provided by the Seller after Closing for the uninterrupted operation of the Vadodara Facility;
(v) (i) the Seller must have made all rental and other payments in respect of the Brine Leases that are due on or prior to Closing pursuant to the terms of the Brine Leases, including without limitation any increases in rental payments mandated by the relevant Governmental Authority pursuant to its rights under the Brine Leases, and (ii) the Seller must further have paid that portion of the rental payments under the Brine Leases for the period August 1, 2012 through the Closing Date, notwithstanding that such rental payments may not be due under the terms of the Brine Leases until May 2013;
(w) (i) the Seller must have made all royalty and other payments that are due on or prior to Closing pursuant to the terms of the agreement dated 19 August 1999 executed with the President of India and the National Research Development Council (“NRDC”) (the “PATSER Agreement”), (ii) the Royalty Agreement dated 9 October 2001 with the NRDC, and the Supplementary Agreement thereto dated 17 April 2001, pursuant to which the PATSER Agreement was amended; and (ii) the Seller shall have provided to the Purchaser a written schedule identifying in reasonable detail all assets acquired from the grant-in-aid under the PATSER Agreement, and shall have obtained the consent of the Department of Scientific and Industrial Research for the transfer of such assets to the Purchaser; and
(x) the Seller must have recorded, with the sub-registrar’s office at Bhuj, itself as the owner of the Owned Real Property relating to the Khavda Facility and the Owned Real Property relating to the Ratadia Facility.
Appears in 1 contract
Conditions Precedent to the Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement Closing are subject to the fulfillmentsatisfaction, on or prior to the Closing Date, of each of the following conditions, conditions (any or all of which may be waived in writing by the Purchaser Purchaser, in its sole discretion:whole or in part, to the extent permitted by applicable Law and Section 11.3):
(a) Sellers shall have delivered to the Purchaser (i) a certified copy except as set forth in clause (ii) below, the representations and warranties of each Seller contained in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Material Adverse Effect” set forth therein) as of the Sale Order Closing Date as if made on and as of the Closing Date (other than for such representations and warranties that are made as of a specific date which shall contain be so true and correct as of such date), except for such failures to be true and correct as would not reasonably be expected to have, individually or in the terms described in Section 7.2) aggregate, a Material Adverse Effect, and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e));
(b) the representations and warranties made by Sellers of each Seller contained in this Agreement or in any Ancillary Document Section 4.1, Section 4.3, and Section 4.10 shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after without giving effect to any such qualification), in each case limitation as of the Agreement Date and to “materiality” set forth therein) as of the Closing Date, with the same force Date as if made on and effect as though all such representations and warranties had been made as of the Closing Date (other than for any such representations and warranties that by their terms address matters only are made as of another specified date, a specific date which shall be so true and correct only in all material respects as of such date) and, in each case, the Purchaser shall have received a certificate signed by an authorized officer of each Seller, dated the Closing Date, to the foregoing effect;
(b) Since the Execution Date, there shall not have occurred any event, circumstance, change, occurrence or state of facts that, individually or together with all other specified date)event, circumstance, change, occurrence or state of facts, has had, or would reasonably be expected to have, a Material Adverse Effect, and the Purchaser shall have received a certificate signed by an authorized officer of each Seller, dated the Closing Date, to the forgoing effect;
(c) Sellers each Seller shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them the Sellers on or prior to the Closing Date, and the Purchaser shall have received a certificate signed by an authorized officer of each Seller, dated the Closing Date, to the forgoing effect;
(d) Sellers shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivered, or caused to be delivered, to the Purchaser or the other applicable parties all of the items set forth in Section 3.2;
(j) Since the date of this Agreement, there has been no Material Adverse Effect;
Appears in 1 contract
Samples: Asset Purchase Agreement
Conditions Precedent to the Obligations of the Purchaser. The obligations of Purchaser Purchaser’s obligation to consummate effectuate the transactions contemplated by Closing under this Agreement are shall be subject to the fulfillment, on or prior to the Closing Date, of each fulfillment of the following conditions, any of which may be waived in writing by the Purchaser in its sole discretionPurchaser:
(a1) the Sellers shall have delivered to held the Purchaser extraordinary meeting of the members, approving (i) a certified copy that each Seller’s transfer of its ownership interests in, and withdrawal from, the Company were approved with unanimous consent of the Sale Order (which shall contain other members of the terms described in Section 7.2) and Company, (ii) copies the appointment of Seller 1 and Seller 2 as managers of the Company, (iii) the appointment of Seller 1 as the representative manager of the Company, and (iv) the Company’s restated articles of incorporation, reflecting the Purchaser as the member of the Company with unanimous consent of all affidavits of service members of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e))Company;
(b2) with respect to the representations and warranties made by of the Sellers in this Agreement or Sections 4.1 and 4.2, the Fundamental Representations shall be true and correct in any Ancillary Document all respects and the other representations and warranties shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Effective Date and as of the Closing Date, with the same force and effect as though all such representations and warranties had been made as of the Closing Date (other than representations and warranties that by their terms which address matters only as of another specified a certain date, which shall be so true and correct only as of such other specified date);
(c3) the Sellers shall have performed and complied in all material respects with all covenants and obligations and agreements required in by this Agreement to be performed or complied with by them on the Seller at or prior to the Closing Date;
(d4) Sellers no order, ruling, or other measures of any Governmental Authority that materially prevents or restrains the Transaction shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Paymentexist;
(e5) Sellers the execution of and the performance of the obligations under the Merger Agreement shall have entered into a Manufacturing Services Agreement with NXP applicable to been validly and effectively approved by the Business (shareholders’ meetings of the “NXP MSA”)Purchaser and the SPAC, in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaserrespectively;
(f6) Sellers all Permits required to be obtained by the Parties for the Closing of the Transaction shall have fulfilled its been lawfully obtained and completed by the Parties; and
(7) on the Effective Date, the Equity Pledge Agreement in the form set forth under Section 5.1(9), securing the Sellers’ obligations under Article 2 of this Agreement as secured obligations and designating the MSA;
(g) Sellers Purchaser as the pledgee, shall have fulfilled their obligations under been executed, and the agreement kun-pledge (the “Philips Agreement”Geun Jxx Xxxx in Korean) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.2;
(j) Since the date of this Agreement, there has been no Material Adverse Effect;established pursuant thereto.
Appears in 1 contract
Conditions Precedent to the Obligations of the Purchaser. The obligations of the Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, conditions (any or all of which may be waived in writing by the Purchaser in its sole discretion:whole or in part to the extent permitted by applicable Law):
(a) Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order, after the Sale Order becomes a Final Order (which shall contain the terms described in Section 7.28.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e)Sellers);
(b) the representations and warranties made by of Sellers set forth in this Agreement or in any Ancillary Document Article V hereof shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing Date, with the same force and effect Date as though all such representations made on and warranties had been made as of the Closing Date (other than except for such representations and warranties that by their terms address matters only made as of another specified a certain date, which shall be so true and correct only as of such other specified date as though made on and as of such date)) except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation or qualification as to “materiality” or “material adverse effect” set forth in such representations and warranties) has not had and would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on Sellers or Sellers’ ability to consummate the transactions contemplated hereby, and the Purchaser shall have received a certificate signed by an authorized officer of HUSA, dated the Closing Date, to the foregoing effect;
(c) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date;, and the Purchaser shall have received a certificate signed by an authorized officer of HUSA, dated the Closing Date, to the forgoing effect; and
(d) Sellers shall have paid the known Cure Costs for all Assigned Contracts, and to the extent not paid, the Purchaser may pay the Cure Costs to the applicable Third Parties and deduct such Cure Costs from the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.2;
(j) Since the date of this Agreement, there has been no Material Adverse Effect;4.2.
Appears in 1 contract
Conditions Precedent to the Obligations of the Purchaser. The obligations obligation of Purchaser to consummate the transactions contemplated by this Agreement are proceed with each Closing hereunder shall be subject to the fulfillment, fulfillment on or prior to before the applicable Closing Date, Date of each all of the following conditions, any or all of which may be waived in writing by the Purchaser in its sole discretion:
(a) Sellers The applicable Seller shall have delivered all of the items required to be delivered by such Seller pursuant to the Purchaser (i) a certified copy terms of this Agreement with respect to such Closing or the Sale Order (which shall contain the terms described applicable Company or applicable Property, including but not limited to, those provided for in Section 7.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e))5.2 hereof;
(b) All of the representations and warranties made by Sellers of the applicable Seller contained in this Agreement or in any Ancillary Document with respect to such Seller and its respective Membership Interests, Company and Property shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing Date, with the same force and effect as though all such representations and warranties had been made as of the Closing Date (other than representations and warranties that by their terms address matters only as of another specified date, which shall be so true and correct only as date of such other specified date)Closing;
(c) Sellers [Intentionally omitted];
(d) The applicable Seller shall have performed and complied observed, in all material respects with respects, all obligations covenants and agreements required in of this Agreement to be performed and observed by such Seller as of the applicable Closing Date;
(e) The applicable Government Lease shall be in full force and effect and the Government shall have executed and delivered with respect to such Government Lease no later than three (3) Business Days prior to the date of such Closing the Statement of Lease, dated within thirty (30) days of the applicable Closing, and Purchaser shall have approved such Statement of Lease in accordance with Section 6.4(c)(i);
(f) The Title Company is irrevocably committed to issue an ALTA owner’s title insurance policy (or complied a TLTA policy with regard to Properties located in Texas) covering the applicable Real Property in the full amount of the Purchase Price, subject only to the Permitted Exceptions, and including a non-imputation endorsement (each, a “Non-Imputation Endorsement”) pursuant to which the knowledge of the applicable Seller prior to Closing shall not be imputed to Purchaser or the Company after Closing (each, a “Title Policy”);
(g) No event under Article VIII shall have occurred with respect to the applicable Property as to which the parties have not yet exercised a permitted election under Article VIII;
(h) There are no pending or, to the knowledge of Purchaser or the applicable Seller, threatened, actions, suits, arbitrations, claims, attachments, proceedings, assignments for the benefit of creditors, insolvency, bankruptcy, reorganization or other proceedings by them or against such Seller, its respective Company, or their respective principals that would materially and adversely affect, prevent or require a consent or approval which has not been obtained as a condition of such Seller’s ability to perform its obligations contemplated under this Agreement;
(i) The applicable Seller, no later than three (3) Business Days prior to the date of Closing, shall have delivered to Purchaser an estoppel certificate (each, a “Contractor Estoppel Certificate”), dated within thirty (30) days of the applicable Closing, executed by each Contractor under a Construction Contract with such Seller’s respective Company, substantially in the form attached hereto as Exhibit H. Purchaser shall have the right to reasonably approve each Contractor Estoppel Certificate obtained from a Contractor.
(j) [Intentionally Omitted].
(k) No written notice of violation of applicable law has been issued with respect to the applicable Company or the condition of the applicable Property after the Inspection Expiration Date, and (ii) no adverse change in the environmental condition of the applicable Property has occurred after the Inspection Expiration Date, which in either case, in Purchaser’s reasonable judgment, could have a material adverse effect on the Company or the value or the contemplated use of the Property which has not been cured or remedied by or at the expense of the applicable Seller to the reasonable satisfaction of Purchaser;
(l) There shall be no adverse environmental condition or violation of Environmental Law at the applicable Property identified in Purchaser’s Environmental Update (if obtained by Purchaser) that was not identified in the Environmental Reports, or the applicable Seller has remediated any such adverse environmental conditions to Purchaser’s reasonable satisfaction; and
(m) Substantial Completion shall have occurred, and such Seller or its respective Company, as applicable, shall have made the deliveries described in Section 6.5(d).
(n) With respect to the Closing of the Membership Interests in the Lubbock Company:
(i) The Lubbock Ground Lease shall be in full force and effect and Lubbock Ground Lessor shall have executed and delivered with respect to the Lubbock Ground Lease no later than three (3) Business Days prior to the date of the Closing on the Lubbock Company’s Membership Interests an estoppel certificate substantially in the form attached hereto as Exhibit N (the “Lubbock Ground Lease Estoppel Certificate”), dated within thirty (30) days of the Closing on the Membership Interests of the Lubbock Company, executed by the Lubbock Ground Lessor, and Purchaser shall have approved the Lubbock Ground Lease Estoppel Certificate in accordance with Section 6.5(i); and
(ii) The Lubbock Ground Lessor shall have executed and delivered (a) Lubbock Ground Lessor’s consent to the transfer of the Lubbock Membership Interests pursuant to Section 18.1 of the Lubbock Ground Lease, and (b) Lubbock Ground Lessor’s waiver of its right of first refusal to acquire the Lubbock Property under Section 18.3 of the Lubbock Ground Lease, all in substantially the form set forth as Exhibit O attached hereto and made a part hereof (the “Lubbock Ground Lessor Consent and Waiver”).
(o) With respect to the Closing of the Membership Interests in the Lenexa Company, the Lenexa Property City Leases shall be in full force and effect and the City of Lenexa, KS shall have executed and delivered no later than three (3) Business Days prior to the date of the Closing on the Lenexa Company’s Membership Interests, an estoppel certificate substantially in the form attached hereto as Exhibit P (the “Lenexa City Lease Estoppel Certificate”), dated within thirty (30) days of the Closing of the Lenexa Company’s Membership Interests, executed by the City of Lenexa, KS, and Purchaser shall have approved the Lenexa City Lease Estoppel Certificate in accordance with Section 6.5(j). Notwithstanding the foregoing, in the event the conditions set forth in Section 5.6(e), Section 5.6(i), Section 5.6(n), or Section 5.6(o) have not been satisfied by the applicable Seller on or before the third (3rd) Business Day prior to Closing, either Purchaser or such Seller shall have the right, by written notice to Purchaser on or before such date, to extend the Closing Date for a period not to exceed sixty (60) days (each, an “Extended Closing Date”) in order to satisfy such conditions. In the event that all of the above conditions in this Section 5.6 are not satisfied or deemed waived by Purchaser at or prior to the applicable Closing Date (or the Extended Closing Date, as applicable), Purchaser may terminate this Agreement, by written notice to Seller, with respect to the Company that was the subject of the Closing that was to occur on such Closing Date, in which event such Company shall be a Terminated Company. If Purchaser terminates this Agreement on or prior to the applicable Closing Date (or the Extended Closing Date;
(d, as applicable) Sellers with respect to such Company due to a failure of any of the conditions in this Section 5.6, then as its sole remedy, Purchaser shall have paid the known Cure Costs for all Assigned Contracts, and be entitled to the extent return of the Deposit allocated to such Company on Schedule 2.5(b) and the provisions of Section 11.19 shall apply with respect to such Terminated Company. If Purchaser does not paid, the Purchaser may pay the Cure Costs so elect to terminate this Agreement with respect to such Company on or prior to the applicable Third Parties and deduct such Cure Costs from Closing Date (or the Cash Payment;
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”Extended Closing Date, as applicable), then the conditions of this Section 5.6 shall be deemed waived and Closing shall proceed hereunder with regard to such Company. Notwithstanding the foregoing, in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 event that a failure of any of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items conditions set forth in this Section 3.2;
(j) Since 5.6 shall also constitute a default by the date applicable Seller under this Agreement, Purchaser shall be entitled to pursue its remedies under Section 7.2 of this Agreement, there has been no Material Adverse Effect;.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Easterly Government Properties, Inc.)
Conditions Precedent to the Obligations of the Purchaser. The obligations of Purchaser to consummate the transactions contemplated by this Agreement are subject to the fulfillment, on or prior to the Closing Date, of each of the following conditions, conditions (any or all of which may be waived in writing by the Purchaser in its sole discretion:whole or in part to the extent permitted by applicable Law):
(a) Sellers shall have delivered to the Purchaser (i) a certified copy of the Sale Order (which shall contain contain, among other things, the terms described in Section 7.28.2) and (ii) copies of all affidavits of service of the Sale Motion or notice of such motion filed by or on behalf of Sellers (which service shall comply with Section 7.1(e8.1(e));
(b) the representations and warranties made by of Sellers set forth in this Agreement or in any Ancillary Document Article V hereof shall be true and correct in all material respects (provided that any such representation or warranty that is subject to any materiality, Material Adverse Effect or similar qualification shall be true and correct in all respects after giving effect to any such qualification), in each case as of the Agreement Date and as of the Closing Date, with the same force and effect Date as though all such representations made on and warranties had been made as of the Closing Date (other than except for such representations and warranties that by their terms address matters only made as of another specified a certain date, which shall be so true and correct only as of such other specified date as though made on and as of such date)) except where the failure of such representations or warranties to be true and correct (without giving effect to any limitation or qualification as to “materiality” or “material adverse effect” set forth in such representations and warranties) has not had and would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, and the Purchaser shall have received a certificate signed by an authorized officer of MSN, dated the Closing Date, to the foregoing effect;
(c) Sellers shall have performed and complied in all material respects with all obligations and agreements required in this Agreement to be performed or complied with by them on or prior to the Closing Date, and the Purchaser shall have received a certificate signed by an authorized officer of MSN, dated such Closing Date, to the forgoing effect;
(d) Sellers Except as provided in Section 9.3, all of the Assigned Contracts set forth on Section 10.3(d) of the Seller Disclosure, shall (i) be in full force and effect on the Closing Date, (ii) be assignable to the Purchaser without the consent of the counterparty to such Assigned Contract for such assignment (or such consent shall have paid the known Cure Costs for all Assigned Contracts, and been received prior to the extent not paid, Closing Date) and (iii) have had all of Sellers’ monetary breaches and monetary defaults thereunder cured as of the Purchaser may pay Closing Date by payment of the Cure Costs to through the applicable Third Parties and deduct such Cure Costs from funding provided by the Cash Payment;DIP Lenders under the DIP Loan (or creation of reserves therefor) in accordance with the Sale Order or otherwise.
(e) Sellers shall have entered into a Manufacturing Services Agreement with NXP applicable to the Business (the “NXP MSA”), in form and substance reasonably satisfactory to Purchasers and Sellers shall have assigned the NXP MSA to Purchaser;
(f) Sellers shall have fulfilled its obligations under Article 2 of the MSA;
(g) Sellers shall have fulfilled their obligations under the agreement (the “Philips Agreement”) dated January 17, 2012 between Trident Microsystems (Hong Kong) Limited and Philips Consumer Lifestyle B.V. (“Philips”). Phillips shall have released any claims against Sellers under the Philips Agreement and the Philips Agreement shall have terminated;
(h) the executed Entropic License Agreement will be in substantially the same form and substance as the version of the document provided to Purchaser as of the date hereof;
(i) Sellers shall have delivered, or caused to be delivered, to the Purchaser all of the items set forth in Section 3.24.2;
(jf) Since Purchaser shall have obtained all of the date Material Permits, and all of this Agreementthe Material Permits shall be in full force and effect as necessary for the Purchaser to continue to conduct the Business in the Ordinary Course of Business immediately after the Closing Date; and
(g) between the Execution Date and the Closing Date, there has been no shall not have occurred a Material Adverse Effect;.
Appears in 1 contract
Samples: Asset Purchase Agreement (Medical Staffing Network Holdings Inc)
